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2003 DIGILAW 577 (RAJ)

Chandra Shekhar v. State of Rajasthan

2003-04-18

D.N.JOSHI, RAJESH BALIA

body2003
JUDGMENT 1. 1. Heard learned counsel for the appellant as well as learned counsel for the respondents. 2. This appeal is directed against the order dated 6.9.1999 passed by learned Single Judge, dismissing the writ petition. 3. The petitioner has applied for considering his case for appointment to the post of teacher Grade III in pursuance of advertisement No. 10/98. He raised his claim to be considered in the category of Other Backward Classes. Along with his claim, he submitted a certificate about his belonging to the category of Other Backward Classes which is Aheer by caste, which is Exhibit 12 on the record. In the first instance, applicant-petitioner was required to satisfy that he has obtained a degree of teachers education from a recognised institution by the NCET. The petitioner had secured his training for B. Ed. from Mahrishi Dayanand University, Rohtak, after receiving training from Rao. Raj. Singh College of Education, Singhrawali, Gurgoan, which was a recognised institution of the NCET as per Annexure-9. However, he was not offered appointment in spite of the aforesaid clarification, which led to filing of the present petition, when he was informed that he cannot be considered for appointment against the seats reserved for Other Backward Classes because he was a member of a creamy layer. 4. The contention of the petitioner in this regard was that he was certified by the Competent Authority to be a member of Other Backward Classes and the original certificate did mention that he is not from creamy layer. However, according to the submission made on behalf of the petitioner, paragraph 2 of the certificate was not scored out but was scored out later on malafide, to deny the petitioner's consideration in order of merit amongst the candidates coming from Other Backward Classes. In support of this contention, petitioner submitted a latter from the then Tehsildar, Aburoad who had issued certificate Ex. 12 while posted as Tehsildar, Kot Kasam (Alwar) that he knows the petitioner personally and he does not come within the category of creamy layer and the certificate dated 11.7.1994 was issued for the purpose of availing the benefit of fee exemption. The petitioner also submitted another certificate obtained by another Tehsildar of Alwar dated 31.5.1999 certifying that he is not within the category of creamy layer as per the regulation contained in Schedule dated 15.4.96. 5. The petitioner also submitted another certificate obtained by another Tehsildar of Alwar dated 31.5.1999 certifying that he is not within the category of creamy layer as per the regulation contained in Schedule dated 15.4.96. 5. However, the respondents case was that they have acted on the basis of certificate issued by the Competent Authority which certifies that he is within the category of creamy layer inasmuch as Para 2 of the certificate was scored out. 6. The learned Single Judge dismissed the writ petitioner solely on the ground that no person from amongst the category of Other Backward Classes who has been given appointment but was lower in order of merit than the petitioner has been impleaded and, therefore, the petition suffers from non joinder of necessary party. 7. This led to filing of this appeal in which an application was made for impleading one Suresh Kumar on the assertion that he is one such person who has obtained lower merit than the petitioner, yet, he has been offered appointment against the seats offered for Other Backward Classes, which application was allowed. 8. At the outset we are of the opinion that petitioner could not have been nonsuited on the ground of non-joinder of selected candidates. The petitioner was challenging his ouster from consideration altogether. He was not challenging the selection process as such. His prayer is that his exclusion from consideration was on irrelevant consideration. Therefore he had a right to be considered if found suitable and meritorious to get selected on the basis of said selection list to get consequential relief. To claim such relief except respondents, who are involved in selection process, are the necessary party. 9. However, we have considered it appropriate to examine the merit of petitioner's contention rather than remanding the case to be heard by learned Single Judge for a second time. 10. During the course of hearing on 28.11.01, the Court directed learned counsel for the respondent to produce select list of candidates prepared by them in order of merit in the category of Other Backward Classes and also to produce list of candidates to whom appointment in the category of Other Backward Classes has been offered. The said list has been placed in Court for its perusal at the time of hearing. 11. The said list has been placed in Court for its perusal at the time of hearing. 11. The same contention has been raised before us about the interpolation made by the respondents in the certificate of eligibility to be considered against the vacancies of Other Backward Classes. However, we find no substance in the said assertion. It is apparent from the averments made in the petition itself that Paragraph 2 was scored out in the certificate by the issuing authority himself and certificate with scored out paragraph (2) was produced by the petitioner along with his application. 12. In ground 4 of the petition, it has been specifically mentioned that the petitioner submitted the certificate of Other Backward Classes duly issued by Tehsildar in which it was said that he is not under the category of creamy layer. The said certificate with scored out Paragraph (2) has been produced as Annexure-12. Therefore, it cannot be said that there was any interpolation and Paragraph 2 of the certificate issued by Tehsildar, Kotkasim, Alwar on 11.2.1994 was scored out later on. It is also true that Paragraph 2 pertains to the certificate that incumbent who is a member of Other Backward Classes does not come within the sphere of creamy layer. 13. Therefore, certificate Exhibit-12 on its face only certifies that the petitioner was a member of Other Backward Classes but he did not fall within the category of persons who are not in creamy layer. That being the position, the contention about interpolation in the certificate Annexure-12 cannot be accepted. 14. The subsequent assertion by Tehsildar after he has been transferred from Kotkasim on the basis of his personal knowledge that the petitioner does not come within the purview of creamy layer cannot over-ride the effect of certificate issued by him, which is to be acted upon by the Authorities considering the case for appointment against reserved category. It is not a matter to be investigated by Competent Authority engaged in selection of candidates. This is for Competent Authority to satisfy himself about the fact whether the concerned person is a member of O.B.C. and whether he belongs to creamy layer or non-creamy layer of society. That being so, the certificate issued by Competent Authority has to be given effect to and it Is not within the domain of selecting authority to hold enquiry into correctness of certificate. That being so, the certificate issued by Competent Authority has to be given effect to and it Is not within the domain of selecting authority to hold enquiry into correctness of certificate. That is the official manifestation on which the consequence of such certificate must follow. If such certificate is erroneously issued, it has to be amended or modified in the manner known to law by the Competent Authority himself and cannot be ignored by other agencies. 15. Moreover in his affidavit Tehsildar, Kotkasim (Alwar) does not say that Para 2 of the certificate issued by him was not scored out in the original. 16. In these circumstances, on the basis of certificate which was made available to the Selection Authority by the petitioner himself, petitioner was not liable to be considered against vacancies reserved for Other Backward Classes and his case has rightly not been considered against such vacancies. 17. Accordingly, this appeal fails and is hereby dismissed.No order as to costs.Appeal Dismissed. *******